* * did not agree to pay him the value thereof, | of specified classes of property differing wideif destroyed, regardless of who might then ly in kind, particularly described and capable be the owner, only to indemnify him for such of distinction each from the other, and alloss as he should suffer because of owner- though the indemnity is divided among the ship. This is the essence of every contract several classes in a stated proportion, yet, as for insurance, even without express men- a matter of law, the contract is one and indition. By the fixed law of legal gravitation visible, resting upon a single consideration, the contract to indemnify for loss by fire and framed to secure a single result; the apfalls at the instant when the person purchas- portionment of the indemnity being the exing indemnity ceases to have any interest in ercise of their right by the parties to meet the the thing insured. Doubly so in this case, possible forms of loss which might befall as in this policy it is expressed that it "shall them. The property insured was in one be void * * * if, without such assent, ownership, possession, and place; exposed to the said property shall be sold. *"the same hazards. The defendant agreed to The word "sold" stands for the voluntary insure a building and personal property, the transfer of all right or title to, and of all in- latter to be retained within the former, all to terest in, the land and buildings thereon, by be owned by the same person, naming him. Stannard to another; also, for the wresting Presumably, all these facts entered into the from him, by due process of law, of all right calculation, ending in fixing the consideraor title to, and of all interest in, the same, tion. It is impossible to say, either as a matand the vesting thereof absolutely in another; ter of law or of fact, that the ownership by also, for his permitting a decree against him the same person of both species of property for strict foreclosure of his title thereto to would not contribute to greater care in prebecome absolute in favor of a mortgagee by serving both, and thus materially lessen the his omission to redeem. As, therefore, at risk; impossible to say, as a matter of fact, that the close of the 5th day of July, 1886, he had the defendant did not so believe, and, because by his own act made it impossible that he of such belief, compel Stannard to accept the could ever suffer any loss, so far forth as the provision. This possibly lower degree of risk, insured buildings are concerned, for which secured at the inception, the defendant is enthe contract in question provides an indem-titled to hold until the expiration of the connity, and as the contract so expressly pro- tract. While it is within our knowledge, as vides, it then came to an end. It had ex-men, that insurers take risks upon buildings hausted the reason for its existence. On July 6, 1886, the plaintiff was the sole and absolute owner of the land. On that day it made a verbal promise to Stannard to sell the land to him. But that promise was without any valuable legal or equitable consideration. It is not found that, by reason thereof, Stannard did any act resulting in loss or injury, or omitted to do any act which would have procured any advantage or benefit to himself. Presumably, he had continued his occupation of the land and buildings, as mortgagor, up to the time of the promise by the plaintiff to him, and remained undisturbed. He had neither legal nor equitable reason for claiming a conveyance of the land from the plaintiff. The latter could have put an unimpeachable title in another. So far forth, then, as the defendant's contract to indemnify Stannard for loss from destruction of the buildings is concerned, it ended on July 5, 1886; therefore; on no day subsequent thereto could the plaintiff take anything by reason of an assignment by him to it. owned by one, and upon personal property therein owned by another, it is equally true that they decline to insure either buildings or personal property owned by some men, or to insure either for any man, if some men are holders of the other in connection therewith; and the defendant is not to be made, against its expressed will and agreement, to stand as insurer of the personal property owned by Stannard, within a building owned by another, at the same rate as if he was interested in the preservation of both. If the contract should be divided, and the agreement as to one species of property should be eliminated, there would remain to the defendant a possibly increased risk as to the other, because of the separation of ownership. The unity of the contract, and the identity of the risk taken, are inseparable; and, although the rate of premium herein may be the same on both species of property, and it may be possible to specify the portion paid by each, it does not follow that the defendant would have originally contracted for either alone, or for both, The defendant by its contract, in consider- in separate ownership, at the same rate. ation of $10.25, insured Stannard "against Within lawful limits, parties must make conloss or damage by fire, to the amount of tracts for themselves. These parties were $1,028; $350 on his frame barn and sheds; careful to say, in effect, that if any part of the * * * $250 on his hay, grain, straw, and property insured ceased to be in the ownerfarm produce; and $428 on his wagons, car- ship of Stannard, there being no assent to the riages, sleighs; * all while contained sale by the defendant, the contract should therein." It is the claim of the plaintiff that, terminate. To the suggestion that the proso far forth at least as the personal property vision is either unanswerable or immaterial, is concerned, the policy remains in full force the conclusive answer must remain that it is and effect. But, although the effect of the not so found as a fact; therefore, what is writcontract is to indemnify Stannard for loss ten must stand. This provision is not to be which he might suffer from the destruction interpreted as referring solely to the sale of * * able by fine, to be recovered by the "board of po- 2. It is nevertheless proper, upon a conviction under an indictment for such sale, to render judg license to sell liquor, as provided in the statute ment disqualifying the defendant from receiving first mentioned, and to fix the fine also, and render judgment therefor, for, while the fine can only be collected by civil suit, the defendant's liability may be fixed by the trial upon the indictment. Argued before MILLER, BRYAN, IRVING, ROBINSON, STONE, and MCSHERRY, J.J. Wm. Pinckney Whyte, Atty. Gen., and Chas. G. Kerr, State's Atty., for the State. Lewis Hochheimer, for plaintiff in error. the whole, nor, in case of the sale of a part, as referring solely to the part sold; for, in these aspects it would be quite superfluous. As has been said, by force of law, in the absence of any express provision, the policy would cease to be operative as to the parts sold. It seems, therefore, that its reference must be to the case of a remainder where there has been a sale of a part of that which is embraced in the same contract; and it is the duty of the court to give an effective meaning to a provision expressed in unmistakable language. What Stannard explicitly conceded to the defendant, when obtaining, he must concede when enforcing, the contract. In instances in which mutual insurance companies have insured buildings and personal property therein contained, by one contract for a single consideration, courts have declared the fact that the company thereby acquired a lien upon both kinds of property for possible assess- MCSHERRY, J. James E. McCracken was ments to be a satisfactory reason for determin- indicted in the criminal court of Baltimore ing such contracts to be indivisible, notwith- city, under section 264, art. 4, Code P. & L. standing the additional fact that the indem- Laws, for selling liquor on an election day. nity was made divisible, and was apportioned He pleaded not guilty, was tried before the to each class of property insured. But the court without a jury, and was convicted. presence or absence of a lien is not a decisive Thereupon, the following sentence was imfact. There have been many like contracts, posed: * * that James E. McCrackby stock companies, upon buildings and per-en's license be forfeited, and that he be dissonal property therein, by one instrument and qualified from taking out any license for the upon one consideration, with like apportion- period of five years, and that he pay a fine of ment of indemnity to different classes of prop- $500, and costs, amounting to $1,900.16, to erty, in which courts have declared the con- the state of Maryland, and the parties entitled tract to be one and indivisible, although there thereto." A motion was made the same day was no lien, simply for the reason that the asking the court to strike out that part of promise is single, and the consideration one the judgment and sentence imposing the fine and entire; the well established test. Bald- of $500. This motion was overruled, and a win v. Insurance Co., 60 N. H. 422; Lee v. petition was at once filed assigning errors, Insurance Co., 3 Gray, 594; Day v. Insurance and praying that the record be removed to Co., 51 Me. 99; Schumitsch v. Insurance Co., the court of appeals as upon writ of error. 48 Wis. 26, 3 N. W. Rep. 595; Bowman v. The record has accordingly been brought to Insurance Co., 40 Md. 620; Moore v. Insur- this court, and is now before us. The secance Co., 28 Grat. 508; Garver v. Insurance tion under which the indictment was framed Co., 69 Iowa, 202, 28 N. W. Rep. 555; Cuth- reads as follows: "It shall be unlawful to bertson v. Insurance Co., 96 N. C. 480, 2 S. keep open in the said city on any election day E. Rep. 258; Havens v. Insurance Co., 111 any drinking establishment or bar-room, or Ind. 90, 12 N. E. Rep. 137. Therefore, inas- any grog-shop whatsoever, or to furnish any much as in legal contemplation Stannard sold spirituous or fermented liquor therein or on July 5, 1886, buildings which, together therefrom; and any person who shall be with certain personal property therein con- guilty of violating this section, or of retailing tained, he had caused to be insured by the de- or dispensing any spirituous or fermented fendant by an indivisible contract, in which liquors on any election day in said city, shall, it was provided that, if he should make such on conviction thereof, forfeit his license, if sale, the contract should terminate, his act of he shall have taken out any, and be disqualisale worked the termination thereof as to all fied from taking out any other license for the property specified therein. The superior court sale of such liquors for the space of five years is advised to render judgment for the defend- thereafter, and shall, moreover, be liable to a penalty of five hundred dollars, to be recovered by said board of police by civil action in the name of the state. * * *" The sole ground of error assigned is that the criminal court was without jurisdiction to impose the fine; or, in other words that, under the statute, the pecuniary penalty can only be recovered in a civil action by the board of police (Court of Appeals of Maryland. June 11, 1889.) in the name of the state, and cannot, thereINTOXICATING LIQUORS ILLEGAL SALES ant. In this opinion PARK, C. J., and LOOMIS and BEARDSLEY, JJ., concurred. CARPENTER, J., dissented. MCCRACKEN v. STATE. STRUCTION OF STATUTES. -CON 1. P. & L. Laws Md. 1888, art. 4, § 264, makes the sale of liquor in Baltimore on election day punish fore, be imposed as was done. On the part of the prosecution it has been insisted that the act of 1880, c. 211, as construed by this court in Snowden's Case, 69 Md. 203, 14 Atl. | by the act of 1880, c. 211. No punishment Rep. 528, provides that the mode of proceed- not warranted by law was inflicted on the ing in all such cases shall be by indictment. appellant; and the mere circumstance that That act declares that, where any fine or pen- the statute points out a particular mode by alty is imposed by any act of assembly for which the fine shall be collected does not renthe doing of any act forbidden to be done, or der void the declaration by the court of the for omitting to do any act required to be accused's liability to pay that fine. When done, the doing of such act, or the omission the party indicted is declared, by the sentence to do such act, shall be deemed a criminal following conviction, liable to the fine, the offense, to be punished, in Baltimore city, act designates the manner in which that fine after trial in the criminal court at its Satur- shall be collected. There is a broad differday sessions, or by indictment therein, and ence between the imposition and the collecin the counties by indictment in the circuit tion of the fine; and there is an equally broad courts. In Snowden's case it was held that, distinction between the power to impose it "in all instances, proceedings for the recov- and the mode of collecting it. It cannot be ery of fines must be by indictment," and imposed until after a verdict of guilty; it that, in the case then being considered, there cannot be collected until imposed. Its imwas nothing in the language of the statute position has nothing to do with the mode of before the court at that time that made the its collection, and its collection is by a promanner of its enforcement an exception. cess different from that which preceded and But there has been a material change in the resulted in its imposition. The power to imstatute law of this state since the date of that pose has been confounded with the mode of decision. Before the Code of 1888 became enforcing; and because the latter is expressly operative, the act of 1880, c. 211, undoubt- declared to be by civil action, it has been eredly so far modified the section under which roneously assumed that the former is denied this indictment was framed-being section to the criminal court. We have not over217, art. 4, of the Local Code of 1860-as to looked the fact that the act of 1880, c. 211, require that the prescribed penalty should be has been codified also in the Local Laws of recovered by indictment only. The Code, Baltimore city, art 4, § 311. But this does though adopted by the general assembly of not change the result. The act of 1880 is a 1888, did not go into effect until February, general law, and its incorporation in the 1889. When it became the law of the state Local Code did not convert it into a local law. it superseded all other legislation. Act 1888, It follows from the views we have expressed c. 74, § 3. It re-enacted in section 264, art. that there was no error committed by the 4, Local Laws, the provisions of section 217, criminal court in imposing the fine; and that art. 4, of the former Local Laws of 1860. At the board of police may recover that fine in the same time it re-enacted in the general a civil action founded on the sentence. The laws the act of 1880, c. 211, and they thus judgment will therefore be affirmed. Judgboth became operative from the same date. ment affirmed. They are unmistakably in conflict. The one declares that the penalty shall be collected by civil action, not by "suit," as in Snowden's UNION PASS. RY. Co. v. MAYOR, ETC., OF Case, the other that it shall be recovered by indictment. It was entirely within the power of the legislature to make these dissimilar provisions, and we are bound to presume it was done for sufficient and satisfactory reasons. But these enactments being clearly irreconcilable, the Local Laws must, under section 10, art. 1, of the General Laws, prevail. As a consequence, the pecuniary penalty can only be recovered in this and other cases under this statute, by civil action in the name of the state. BALTIMORE. (Court of Appeals of Maryland. June 12, 1889.) DISCOVERY-IN EQUITY-JURISDICTION. 1. Code Md. 1888, art. 75, § 94, which provides that, in proceedings at law, parties may be re quired to answer bills of discovery only when unpelled to produce original books, or answer such der the same circumstances they would be combills under the usual rules of chancery practice, does not curtail the jurisdiction of courts of equity to entertain bills of discovery; it being an established rule that a grant of equitable powers to a court of common law will not oust the jurisdiction of a court of equity. 2. No demand is necessary to the maintenance of a bill by a city against a street-railway company to compel it to render an account of its earnings, and to pay an annual tax thereon; the amount of such tax, and times for payment, being fixed by law. But it does not follow that the sentence imposed upon the appellant is erroneous. It was entirely proper for the court, upon the conviction of the offender, to impose the penalty affixed by the statute, even though the pecuniary portion of that penalty could only Appeal from circuit court of Baltimore be recovered, that is, collected, subse-city; D. G. WRIGHT, Judge. quently, by a civil action. A conviction, according to the terms of the statute, must necessarily precede the enforcement of the penalty; and a conviction fixes the liability of the party accused. The sentence merely announced or formally declared that liability, and did not attempt to enforce the payment of the penalty by imprisonment, as provided Bill by the mayor and city council of Baltimore against the Union Passenger Railway Company to require an account of its earnings, a discovery, and the payment of a tax on its gross receipts. A demurrer to the bill was overruled, and the defendant appeals. Argued before ALVEY, C. J., and BRYAN, MILLER, IRVING, STONE, and MCSHERRY, John K. Cowen, E. J. D. Cross, and Geo. D. Penniman, for appellant. Bernard Carter and F. S. Hoblitzell, for appellee. to sustain the conclusion which necessarily follows, viz., that the act of 1796 did not take away the jurisdiction of a court of equity in such a case as this. Whatever may be the doctrine elsewhere, it has never been understood to be the law in this state that a court of equity is deprived of its jurisdiction in a case like this by reason of the power conferred by the act of assembly on the courts of law in this particular; and we do not see how, upon principle independent of authority, it could possibly be so held. The bill is for an account and a discovery. It is designed to compel the railway company to divulge information possessed by it, which is absolutely necessary to the plaintiff's case, and material to the relief prayed for by it. "It may be laid down as a general doctrine, that, in matters of account growing out of privity of contract, courts of equity have a general jurisdiction where there are mutual accounts, (and a fortiori where the accounts are complicated,) and also where accounts MCSHERRY, J. The appellant is an in- are on one side, but a discovery is sought and corporated company operating three lines of is material to the relief. And, on the other street passenger railways in the city of Balti- hand, where the accounts are all on one side, more. One of its lines extends for about a and no discovery is sought or required, and half-mile into Baltimore county. By the act also where there is a single matter on the side of assembly of 1882, c. 229, the 12 per cent. tax of the plaintiff seeking relief, and mere setimposed by ordinance No. 150 of 1880 on the offs on the other side, and no discovery is gross receipts of all such railways in the city sought or required, in all such cases, courts of Baltimore was reduced to 9 per cent., and of equity will decline taking jurisdiction of was directed to be paid quarterly to the city the cause. The reason is that no peculiar register. The appellant paid into the city remedial process or functions of a court of treasury, quarterly, certain amounts repre- equity are required." 1 Story, Eq. Jur. § 459, sented by it to be 9 per cent. of the gross and cases cited in notes. It is quite a faearnings realized on all its lines within the miliar principle that where a court of equity city limits; but these amounts were deemed has original jurisdiction, and a statute conby the city authorities to be insufficient and fers upon the common-law courts a similar incorrect, especially when contrasted with power, the jurisdiction of equity is not therethe payments made by other like companies by ousted. Barnes v. Compton, 8 Gill, 398. for the same periods of time. On January It would seem to need no further discussion 31, 1885, the mayor and city council filed a bill in equity against the appellant for an account of the sums collected by it, and for a discovery of its gross earnings, the earnings of each of its lines, and of each car thereon, and of the earnings made upon the half-mile of road beyond the city. It also sought a discovery as to the manner in which the company's accounts were kept, with reference to the mode of calculating the earnings on this half-mile of its road, and the amount deducted by it on account of this half-mile from its total gross receipts. To this bill the appellant interposed a demurrer, and assigned six grounds therefor. These, however, are found upon examination to present but two distinct grounds, and no more. They areFirst, that a court of equity has no jurisdiction to decree a discovery, because, under article 75, § 69, of the Code in force when the bill was filed, it being section 94 of article 75 of the Code of 1888,-precisely the same relief sought here could have been obtained in an action at law; and, secondly, because, before the filing of the bill, no demand is alleged to have been made upon the appellant for the payment of the money due by it to the city. By the section of the Code just alluded to, it is provided in substance that, in proceedings at law, the court shall have power to require the parties to answer any bill of discovery which may be filed only in case, and under circumstances where, they might be compelled to produce original books or writings, or answer such bill of discovery by the ordinary rules of proceeding in chancery. This provision has been the law of Maryland since 1796, having been enacted in that year. We are not aware that it has ever before been supposed or suggested that this statute ousted the jurisdiction undoubtedly possessed by a court of equity over this subject from very early times. The very terms of the statute admit the existence of such a jurisdiction. The second ground of demurrer is equally untenable. The cases relied on by the appellant support an entirely different proposition. These cases are Topham v. Braddick, 1 Taunt. 572; Ferris v. Paris, 10 Johns. 285; Taylor v. Bates, 5 Cow. 379; Rathbun v. Ingals, 7 Wend. 320; and Cooley v. Betts, 24 Wend. 203. As concisely and correctly stated in the brief of the distinguished solicitor for the appellee, these cases "simply establish this proposition: that, where money has been received by an agent, factor, or other person belonging to the plaintiff, and such person either is in no default in not having paid it over to the plaintiff, or where, by the nature of the dealings between them, it was implied that a demand would be made for the money before suit brought, in such cases a demand must precede the suit." But the case at bar does not fall within the principles announced in any of these decisions. Here no demand was necessary, because the ordinance of the city definitely fixed the times when payments should be made. The appellant's duty was clear and unmistakable. It was bound to pay over this tax quarterly, and failing to do so was a breach of that duty which fastened upon it a liability to be proceeded against | a range and two fire-place heaters, with necwithout any demand being made. Its obli-essary attachments, for each of 23 houses, gation to pay at the times designated was then being, or about to be, erected by the perfect and complete, and nothing further firm on certain contiguous lots, the legal was needed to render it amenable to process title to which appears to have been in Dobfor collection than its neglect to comply. We are therefore of opinion that the circuit court of Baltimore city was right in overruling the demurrer, and the decree appealed from will be affirmed, and the cause will be remanded. Decree affirmed, with costs, and cause remanded. SCHAPER v. BIBB et al. ed for work done or materials furnished for or title the material-man to a lien therefor. son, one of the firm of Wilson & Co. By the contract, Wilson & Co. were required to pay $56.50 per house, for such range and fire-place heaters, within 30 days after the completion of the contract by the appellees; and Wilson & Co. were to have the privilege of calling for heaters and ranges as they needed them, provided they did not call, at any one time, for heaters and ranges for less than two houses; and, if they (Court of Appeals of Maryland. June 11, 1889.) did not take the whole lot within three MECHANICS' LIENS. months from the date of the contract, then Under the Maryland mechanics' lien law, pro- the account for all the articles furnished up viding that every building erected "shall be sub-to the expiration of that time should be conject to a lien for the payment of all debts contract-sidered due and payable. It is quite clear, about the same, "a cooking range and fire-place therefore, that the contract was an entire heaters, with their necessary attachments, put as and continuous one for all the ranges and permanent fixtures into a dwelling-house in the fire-place heaters to be furnished for the 23 course of its construction for purposes of sale or houses. The range and fire-place heaters for rent, which fixtures are regarded by builders generally as essential parts of that class of houses, en- the house now owned by the appellant, being one of the 23, were furnished on or about the 12th of December, 1887; and on or about the 14th of December, 1887, the appellant purBill for the enforcement of a mechanics' chased and took possession of the house. lien, filed by Bentley C. Bibb and A. W. The appellees completed their entire conStehman, surviving partners of the firm of tract, by furnishing all the materials and B. C. Bibb & Son, against John E. F. Scha-work required by its terms, by the 4th of per, as the owner of the premises known as No. 1200 East Townsend street, in the city of Baltimore. There was a decree for complainants, and defendant appeals. Appeal from circuit court of Baltimore city; J. UPSHUR DENNIS, Judge. Argued before ALVEY, C. J., MILLER, ROBINSON, IRVING, BRYAN, MCSHERRY, and STONE. JJ. John P. Poe, for appellant. Francis P. Stevens and Morris P.Stevens, for appellees. ALVEY, C. J. The mechanics' lien law provides that every building erected "shall be subject to a lien for the payment of all debts contracted for work done or materials furnished for or about the same;" and the legislature has expressly required that this law shall be construed liberally as a remedial law. Even without the express direction of the legislature, this court said, in Blake v. Pitcher, 46 Md. 464, that the general language of the statute plainly indicates that the most liberal and comprehensive meaning should be given its provisions in favor of mechanics and material-men. In this case the question is whether the claim of the appellees, being for range, fire-place heaters, and the usual accessories of pipes, registers, etc., and work done in placing these articles in the house of the appellant, then in course of erection, is such as entitled the appellees to a lien therefor on the house, under the provisions of the statute. The facts are, as shown by the record, that Wilson & Co., a firm composed of E. J. Wilson and George H. Dobson, Jr., on the 6th of December, 1887, entered into a contract with the appellees for the furnishing by the latter of February, 1888, within the time mentioned in the contract; and from that date the appellees had six months within which to file their claim for record, and it appears that the claim was filed on the 16th of June, 1888, and was therefore in time. For what purpose and with what intent were the range and fire-place heaters fitted in the house while in course of erection? As a general rule it may be stated that whether a thing which may be a fixture becomes a part of the building, by annexing it, depends upon the intention with which it is done. The character of the physical attachment, whether slight or otherwise, and the use, are mainly important in determining the question of intention of the party making the attachment or annexation. Hill v. Sewald, 53 Pa. St. 271; Potter v. Cromwell, 40 N. Y. 287; Ewell, Fixt. 21, 22. Here there can be no doubt of the intention of Wilson & Co. in fitting in the house, while in course of construction, the range and fire-heaters, with their attachments. It was doubtless the purpose to put in these articles as permanent fixtures, and as part and parcel of the finish of the house. The houses were being built for sale or rent, and it was the manifest object to finish them in such modern and improved style, as to convenience and comfort, as would make them desirable residences. This could only be done by finishing the houses by fitting in ranges and fire-place heaters; and this is shown to be the universal understanding and practice among builders and material-men in Baltimore. They all, --that is, those called as witnesses, |